M was an independent candidate in the Senate election for the State
of Queensland scheduled for 1 December 1984. The Commonwealth Electoral
Act 1918 (Cth) (the Act) provided that the Senate ballot paper was divided
in two by a horizontal black line. Below the line the names of the individual
candidates appeared, grouped in separate columns according to their party
affiliations; independent candidates were also grouped together in columns.
A box appeared opposite the name of each candidate and the Act permitted
as one method of voting the numbering of all these squares in order of
preference. There were also boxes above the black line, one above each
of the columns in which the names of candidates belonging to the same political
group appeared, but there was no box above those columns in which the names
of unaffiliated candidates appeared. As an alternative to the numbering
of the individual squares below the line the Act permitted the voter to
mark one of the boxes above the line and, if this was done, the voter's
preferences were distributed in accordance with the voting ticket(s) lodged
by the group selected.

M sought a declaration that the provisions of the Act authorizing this
form of ballot paper were invalid and an injunction to restrain the distribution
of Senate ballot papers in Queensland. He argued that the Constitution
required electors to vote for individual candidates and not for parties
as was permitted by the Act and also that the disadvantage caused to independent
candidates by the opportunity to vote for parties offended the democratic
principles implicit in the requirement that the Senators for a State be
"directly chosen by the people of the State".

Held, dismissing the application:
(i) While the Constitution requires electors at a Senate election to vote
for individual candidates, it does not forbid the use of a system which
enables electors to vote for individual candidates by reference to a group
or ticket.

(ii) Any disadvantage caused by the voting system established by the
Act to candidates who were not members of a parties or groups did not so
offend democratic principles as not to satisfy the requirement of s 7 of
the Constitution that the Senate be elected by democratic means.

This was an application to the High Court of Australia for a declaration
that sections of the Commonwealth Electoral Act 1918 (Cth) prescribing
the form of Senate ballot paper for the election scheduled to be held on
1 December 1984 were invalid and for an injunction to restrain the distribution
of ballot papers for the Senate election for the State of Queensland.

The plaintiff appeared in person.

Dr G Griffith QC-SG and W W Caldwell, for the defendants.

Gibbs CJ.The plaintiff, Mr McKenzie,
is a candidate for election as a senator for the State of Queensland. By
his statement of claim he claims a declaration that the sections of the
Commonwealth Electoral Act 1918 (Cth), as amended (the Act), which authorize
the use at a Senate election of a ballot paper in Form E in the schedule
to the Act are beyond the power of the Parliament and an injunction restraining
the defendants from distributing or making available to electors in the
State of Queensland ballot papers in Form E in the Schedule to the
Act. The practical effect of such an injunction, if it were granted, would
be to prevent the holding of the election on 1 December.

The plaintiff argued his own case and did so very clearly. The submissions
which he has made are understandable and by no means irrational. The provisions
which he seeks to have declared invalid are of recent origin and, so he
contends, place him, as a candidate who belongs to no political party,
at a disadvantage in his bid for election.

By s 209(l) of the Act, ballot papers to be used in a Senate election
shall be in Form E in the schedule. The form directs the voters to vote
in either of two ways. The ballot paper is divided horizontally by a black
line. Below the line, the names of the individual candidates appear with
a square opposite each; above the line are squares intended to simplify
voting for voters who wish to follow a group ticket. Provision is made
by s 168 of the Act for candidates to claim to have their names grouped
in the ballot papers. In printing the ballot paper the names of the candidates
included in groups are to be printed before the names of candidates not
included in groups but the order of the groups is determined in the manner
provided by s 213, in effect by lot: s 210(a) and (c). Except as otherwise
provided by the regulations, a square is to be printed on the ballot paper
opposite the name of each candidate: s 210 (f) and Form E. Where the names
of candidates are included in a group and those candidates lodge with the
Australian Electoral Office a statement in accordance with s 211 indicating
their order of preferences or orders of preferences in relation to all
the candidates, they are taken to have a group voting ticket or tickets,
and a square is to) be printed on the ballot papers for use in the election
above the names of those candidates: s 211(4) and (5). Such square appears
above the line dividing the ballot paper: see Form E. The voter may mark
his vote either by placing numbers in the squares opposite the names of
the candidates below the line or simply by placing the figure "1" or a
tick or a cross in one only of the squares above the line: s 239. Where
the paper has been marked in a square above the line, it is deemed to have
been marked in accordance with the group voting ticket or tickets lodged
by the candidates in the relevant group: s 272.

Further, by s 214, when a candidate is registered under s 146, and the
name of "a registered political party" is entered in the register of candidates
in relation to that candidate, the name of that party shall be printed
adjacent to his name on the ballot paper - s 214(l). In the case of a group,
the name of the party also appears adjacent to the square above the line
- s 214(2). Only an eligible political party may be registered - s 124
- and "an eligible political party" means "a Parliamentary party" (that
is, a political party which has at least one member in the Parliament of
the Commonwealth, or the Parliament of a State, or the Legislative Assembly
of the Northern Territory or the Australian Capital Territory House of
Assembly) or a political party other than a Parliamentary party that has
at least 500 members - s 123. A candidate who is not a member of a registered
political party may, but need not, have the word "independent" printed
adjacent to his name: ss 146(1)(c), 214(3)(b).

As the plaintiff has rightly pointed out, a candidate who is not a member
of "a registered political party" may be disadvantaged because the name
of the party, if any, to which he belongs will not appear on the ballot
paper. A candidate who is not a member a group cannot take advantage of
the simplified voting procedure which involves the marking of a square
above the line. Indeed, there is no means provided, above the line, for
recording a vote for such a candidate.

The question that now falls for decision is whether the provisions of
the Act to which I have referred are open to objection on constitutional
grounds. The plaintiff submitted, first, that electors who use the simplified
system of voting will be voting for parties and not for candidates and
that this will contravene s 16 of the Constitution, which provides for
the qualifications of a senator: it is right to say that the electors voting
at a Senate election must vote for the individual candidates whom they
wish to choose as senators but it is not right to say that the Constitution
forbids the use of a system which enables the elector to vote for the individual
candidates by reference to a group or ticket. Members of Parliament were
organized into political parties long before the Constitution was adopted
and there is no reason to imply an inhibition on the use of a method of
voting which recognizes political realities provided that the Constitution
itself does not contain any indication that such a method is forbidden.
No such indication, relevant to the present case, appears in the Constitution.

The second principal ground taken by the plaintiff is that it offends
general principles of justice to discriminate against candidates who are
not members of established parties or groups. Section 7 of the Constitution
provides, amongst other things, that the Senate shall be composed of senators
for each State directly chosen by the people of the State. I am prepared
to assume that s 7 requires that the Senate be elected by democratic methods
but if that is the case it remains true to say that "it is not for this
court to intervene so long as what is enacted is consistent with the existence
of representative democracy as the chosen mode of government and is within
the power conferred by s 51(xxxvi)" of the Constitution to use the words
of Stephen J in Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth
(1975) 135 CL-R 1 at 57-8; 7 ALR 593 at 633.

In my opinion, it cannot be said that any disadvantage caused by the
sections of the Act now in question to candidates who are not members of
parties or groups so offends democratic principles as to render the sections
beyond the power of the Parliament to enact. I am by no means satisfied
that s 353(1) of the Act, which provides that the validity of any election
or return may be disputed by petition addressed to the Court of Disputed
Returns and not otherwise, would prevent this court from interfering by
injunction if a challenge were successfully made to the provisions of the
Act on constitutional grounds. The case is distinguishable from Berrill
v Hughes, recently decided by Mason J, which turned on statutory and
not on constitutional considerations. Nor do I think that s 47 of the Constitution
is relevant to the present case. Having regard to the conclusion which
I have reached, however, those questions do not now arise.